What's in the Public Domain?

We’re speaking with Attorney Stephen Fishman, an expert on copyright law, and the author of “The Public Domain: How to Find and Use Copyright-Free Writings, Music, Art, and More.”

NOLO: Steve, there’s been a lot of interest in the public domain these days. Can you give us some famous examples of things that are in the public domain?

STEPHEN FISHMAN: Well, there’s a huge amount of material available. For example, the works of William Shakespeare are in the public domain, many, many famous songs, “The Star-Spangled Banner,” “Jeanie with the Light Brown Hair” by Stephen Foster, the King James version of the Bible…

NOLO: So, the fact that these works are in the public domain… does that mean that anyone can copy them? What exactly does it mean if something is in the public domain?

STEPHEN FISHMAN: Yeah, when something is in the public domain, it means that anybody can copy it or use it any other way without paying a permission fee to any copyright owner, because there is none; the work belongs to the public as a whole, and any member of the public can use it any way he or she desires.

NOLO: If a person has an idea, can that be in the public domain? Because, for example, the lawyer for Dan Brown, author of The Da Vinci Code, says, “Dan Brown is free to copy certain ideas, as long as he doesn’t copy the expression.”

STEPHEN FISHMAN: Well, his lawyer is quite right; he’s paying him probably 200 bucks an hour, 200 pounds an hour, I’m sure he’s worth every penny. What he means is that ideas, concepts, thoughts… they’re always in the public domain; no one can own an idea. It’s only when you express an idea, when you put it down on paper, you write it, or if you have a musical idea, you play it, and you record it or write it down as sheet music… only what you express in a concrete form is protected, not the intangible idea itself. Thus, Dan Brown can take the idea of Jesus Christ having a child with Mary Magdalene, and write a novel based on it, as long as he doesn’t copy the actual words from the books of these people who are suing him.

NOLO: Okay, well you were saying earlier that “Jeanie with the Light Brown Hair” is in the public domain. Does that mean that anyone can use a recording of that song and copy it and sell it?

STEPHEN FISHMAN: No, I’m afraid not. Sound recordings and the music have two separate copyright regimes. There’s the sheet music, and then there’s the recording; they’re both separately copyrighted. Most recordings are not in the public domain, whereas all the sheet music published before 1923 -- which includes “Jeanie with the Light Brown Hair” -- is in the public domain, and thus, you can get a copy of the sheet music, and make your own recording. If you want to use an existing recording, you’ll probably have to get permission or pay a license fee.

NOLO: So, the message would be, if you wanted to use a public domain song in your film, the best advice would be to do a new recording of it, because then you wouldn’t have to pay any…?

STEPHEN FISHMAN: Depending on the cost, that probably would be the cheapest thing, although you might be able to get a cheap, cheap permission fee for some music, but certainly, it would be pretty inexpensive to hire a pianist or someone to play any public domain song.

NOLO: Is there a simple way for people to determine if something is in the public domain? For example, in your book, “The Public Domain,” I know you have a chart that’s pretty easy to use. Can you just give us a couple of quick tips on how you can determine if something’s in the public domain?

STEPHEN FISHMAN: Well, one tip is that anything published in the United States before 1923 is in the public domain in the United States. Many works published in the United States between 1923 and 1963 are also in the public domain, because they never had their copyrights renewed. However, you’ll have to research copyright records to determine whether they’ve been renewed or not. Government works, US government works by the federal government, everything they publish and create is in the public domain; the speeches of George Bush, everything published by the US printing office, NASA photographs and films, decisions by federal judges… they’re all in the public domain.

NOLO: Steve, is open source software the same thing as public domain software?

STEPHEN FISHMAN: Open source software is not in the public domain, but it is made available, subject to its very, very liberal license, and this license permits users to modify, distribute, or otherwise use the software, without getting permission.

NOLO: Okay, so, it’s not public domain software; it’s software that’s subject to license conditions. So, you really need to read the license on it.

STEPHEN FISHMAN: It’s software that somebody owns, but they let other people use, free of charge, for many uses.

NOLO: One thing you mentioned earlier was a derivative work; could you just give a brief explanation of what a derivative is, and maybe give us an example of how public domain work can be transformed into a derivative?

STEPHEN FISHMAN: Well, derivative work is any work that is based on or adapted from pre-existing work. For example, if you make a movie based on a novel, the movie is a derivative work. Recently, we’ve had, for example, the movie “Oliver Twist,” based on the novel by Charles Dickens, which is in the public domain. The movie is a derivative work based on a public domain novel.

NOLO: And you can have a derivative where you alter the public domain work, like “West Side Story”?

STEPHEN FISHMAN: Good example, “West Side Story,” loosely based on “Romeo & Juliet.”

NOLO: When you create a derivative, though, you can protect that and stop others from using what’s in the derivative?

STEPHEN FISHMAN: That’s correct. When you create a derivative, the original material you add is protected. The material you’ve copied from the original public domain source remains in the public domain, but anything you add is protected.

NOLO: In your book, you refer to the public domain presently being frozen. What do you mean by that?

STEPHEN FISHMAN: Back in 1998, Congress passed a law called “The Sonny Bono Copyright Extension Act” that extended the copyright terms for all existing copyrighted works by twenty years. As a result of that law, no new works will enter the public domain until the year 2019.

NOLO: Is creative commons the same thing as public domain?

STEPHEN FISHMAN: It can be, but is not always. Creative Commons is a nonprofit group that is trying to foster the public domain, and fare use, and they’ve created several types of licenses that people can use, somewhat similar to open source licenses.

NOLO: And where can you find out more about the creative commons?

STEPHEN FISHMAN: They have an extensive website at creativecommons.org where you can find out about all of their licenses.

NOLO: Steve, your book is very helpful in terms of determining whether something is in the public domain or not, but one of the things you do suggest is looking things up on the copyright website. Some people may not be able to do that for one reason or another; is there some way you can pay someone to find out that kind of information?

STEPHEN FISHMAN: Yes, you can pay the Copyright Office; they charge $75 an hour to do copyright research, and there are also private firms that will do it; the best known is called Thompson & Thompson, located in Washington DC.